Each will hold an interrupted opening statement speech with their main arguments; the moderator then takes questions from the audience; finally each speaker will conduct a closing statement.
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Please download the app before the event to cast your vote on the most convincing team. Leena Grover is the author of Interpreting Crimes in the Rome Statute of the International Criminal Court Cambridge University Press, and was legal adviser to the chief negotiators on the aggression amendments to the Rome Statute. Letizia Lo Giacco, is a doctoral candidate in international law at Lund University, where she also teaches.
He was mainly involved in the ongoing appeal in the case of Prosecutor v Bemba. Jurisdiction is also limited ratione temporis to offences committed after the entry into force of the Statute. To begin with, the proprio motu jurisdiction is limited by the principle of complementarity. The prosecutor must defer to a state with national jurisdiction over an offence unless that state is unwilling or unable to investigate and prosecute.
Further to address the concerns of the P-5, Article 16 provides for the deferral of investigations or prosecutions for a period of one year at the direction of the Security Council. And as any prosecutor will attest, the passage of time usually diminishes the likelihood of conviction.
Conversely, others have expressed fears that the Security Council deferral power could eviscerate the independence of the prosecutor and the Court. Maybe only if killings were planned or if ICC dissatisfied with U. At least one further, albeit extraordinary, protection exists.
A prosecutor can be removed from office or subjected to disciplinary measures if guilty of misconduct or a serious breach of duty. It is worth noting as well, in respect of the independence of the office, that the prosecutor may refuse to pursue a state or Security Council referral if it is determined that there is no reasonable basis to proceed. If the decision not to proceed is rejected, the prosecutor must continue the investigation or prosecution.
The functioning of the Pre-Trial Chamber will obviously be important to the effectiveness and independence of the ICC prosecutor. The basic procedural steps for seeking authorization from the Pre-Trial Chamber to initiate an investigation proprio motu are outlined in the Draft Rules of Procedure and Evidence. Victims must first be informed, unless doing so would endanger them or threaten the integrity of the investigation, and notified victims may make representations in writing to the Pre-Trial Chamber.
This can be done on an ex parte and in camera basis. As noted by Bartram S. Brown, it is essential that an ICC based on the principle of complementarity have a reliable mechanism for evaluating national justice systems. In the event that a state claims to be investigating or prosecuting and on that basis asks for an Article 18 2 deferral, however, it is not entirely clear what the standard of review will be. According to the Draft Rules, the state requesting a deferral must begin by providing information concerning its investigation to the Court. As for those concerned that there may be only superficial control of the proprio motu prosecutor, the Djukic case at the ICTY is instructive of the oversight role played by the Pre-Trial Chamber.
In January , General Djukic of the Bosnian Serb army was arrested after being indicted for war crimes and crimes against humanity. While in detention in the Hague, his health deteriorated so significantly that the prosecutor applied to withdraw the indictment on the basis that he was too sick to assist fully in his defence. Leave was denied by the Trial Chamber on the basis that nothing in the Tribunal Statute or Rules authorized the withdrawal of an indictment for health reasons.
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There is, of course, a myriad of prosecutorial systems in use globally, and one must keep in mind the unique nature of international criminal tribunals when making reference to national norms. Jurisprudence from the ICTY, for example, discourages a mechanical importation of notions from national law into international criminal proceedings. In a review, Kai Ambos compared and contrasted the common law systems, as represented by England and the United States, with the civil law systems, represented by France and Germany. Ambos posed a series of inquiries to fifteen countries and attempted to answer three questions.
In that document, if the prosecutor decided not to file an indictment, the Presidency could ask the prosecutor to reconsider the decision if so requested by the Security Council or a state party. With respect to a decision to proceed with a prosecution, the ILC-Draft proposed that the Presidency examine the indictment and either confirm, not confirm or amend it. Ambos found that while national practices differ, judicial supervision of prosecutorial measures, including the indictment, is widely recognized. The inquisitorial systems are not very dissimilar in this respect, as most require strict judicial scrutiny of the indictment.
As such, national standards of prosecutorial independence can be a useful source of reference.
For example, section 4 requires that:. As a result, the judicial branch, and in particular the Pre-Trial Chamber, has been given comparable supervisory and review powers. The Canadian system provides no significant judicial oversight at the investigation stage. Although intrusive investigative procedures such as search warrants and wiretaps require judicial authorization, the decision to investigate or prosecute does not.
However, with the consent of the Attorney-General, it is possible for the Crown Prosecutor to proceed with a direct indictment and put the accused on trial either without a preliminary hearing or following a preliminary hearing that has resulted in the discharge of the accused. However, the Canadian system may have guidance to offer the ICC in another respect; i. This guidance is not unique to Canada, as other systems share a similar understanding of the office; but a brief examination of the Canadian Crown Counsel should prove instructive nonetheless.
The Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis
The historical roots of the Canadian Crown Counsel lie in the British common law system, where the notion of the prosecutor as a minister of justice has a long history. Thursfield , the prosecutor opened his statement to the jury by setting out all the facts, including those that favoured the accused. Rogers stated that the Crown Counsel is not a mere advocate for a party, but an assistant to the Court whose duty is to help in ascertaining the truth. He went so far as to describe the office as a quasi-judicial position.
This concept of the office of prosecutor has continued in Canada into the twentieth century, although it has now been modified, largely as a result of the adversarial process. Boucher , where Rand J. While still considered an impartial participant in the process, the prosecutor is required to press for a conviction. What we can take away from this brief review is that political interference with the office of the prosecutor is detrimental to its perceived legitimacy and subsequent effectiveness.
This would only be amplified in the international arena. Criticisms of the International Criminal Court.
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Much of the criticism aimed at the ICC has already surfaced in the previous sections of this commentary. This part, in some respects, summarizes the issues relating to the office of the prosecutor. The Politically Motivated Prosecutor. Clearly, what many ICC opponents fear most is a prosecutor who initiates proceedings proprio motu for purely political reasons.
John R. They are the real potential targets of the politically unaccountable prosecutor. In fact, the ICC should serve to alleviate the adverse effect of political pressures in the realm of international justice. States have historically been reluctant to exercise universal jurisdiction in respect of grave crimes, due to political pressures from other states that wish to avoid exposure of their complicity.
The ICC will serve to shift some of this risk from individual states and thereby overcome political obstacles to prosecution. Some states also opposed the proprio motu power of the prosecutor on the ground that the office would be overwhelmed with frivolous complaints and would have to waste precious resources addressing them.
What may be the most significant concern with respect to the impartiality of not just the prosecutor, but the entire Court, relates to the matter of funding.
Some have stated that ICTY impartiality is currently undermined by its dependence on the assistance of individual countries for providing its modest budget. Soldiers Confused by the Laws of War. Another concern that finds expression in the debate is that the ICC will endanger soldiers who will not act when they should because of a fear of potential prosecution.
This could, for example, prevent a British warship from attacking a hostile warship until it was too late. This is not an isolated perspective.
In the Gulf War and in the Kosovo conflict, western forces found that the law actually assists in the professional and effective conduct of military operations. Article 8 of the Rome Statute would also limit the prosecution of soldiers for isolated incidents, regardless of whether they might be considered criminal acts.
ICC jurisdiction is meant to apply to, in particular, war crimes that are committed as part of a plan or policy or part of a large-scale commission of such crimes. A Barrier to Peace and Reconciliation. Conversely, many suggest that dictators do not leave power because they are offered amnesty. The reverse is true. They leave when they are weak and vulnerable and desperate to get whatever they can, not whatever they want. For example, the arrest of Augusto Pinochet in London in did not destabilize Chile.
Opinion polls at the time suggested that the arrest had no influence on voting intentions, that most were certain of his guilt and, although there was a preference that justice be meted out at home, most realized that this was a practical impossibility. During the preparatory phase and in Rome, the issue of how to address amnesties was never discussed, in part due to pressure from human rights groups.
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As discussed earlier, this decision is subject to review by the Pre-Trial Chamber. Yale law professor Ruth Wedgwood does not concur. In the case of a court martial, there is no right to a jury trial. He contends that this is a violation of the principles of international law. Current international law, however, provides the principle of universal jurisdiction over the crimes currently defined in the Rome Statute.
Thus, any state has the right to prosecute genocide, war crimes and crimes against humanity regardless of jurisdictional links such as nationality and territoriality. Even in the United States, recent court cases have indicated an increased reliance on the principle of universality. Official U. At the time that the ILC was given a renewed mandate in , the American attitude was one of mistrust towards any international tribunals that could potentially call into question U.
In part, this mistrust arose from the International Court of Justice decision in the Nicaragua case, which led the United States to withdraw from the compulsory jurisdiction of the World Court, and from fears that American military leaders could face charges for other controversial actions like the invasion of Panama or the bombing of Tripoli. In fact, some would argue that the U. Obviously, this track will automatically have available Security Council enforcement mechanisms, such as embargoes and the authorization of the use of force.
The second track, involving state party referrals and proprio motu prosecutions, has no built-in process of enforcement but relies on the co-operation of state parties. Thus, the real power is in the first track. So why does the United States oppose the Court?